BPW, Re [2004] QMHC 7

MENTAL HEALTH COURT CITATION: Re BPW [2004] QMHC 007 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF BPW PROCEEDING NO: 0097 of 2003 DELIVERED ON: 22 July 2004 DELIVERED AT: Brisbane JUDGE: ASSISTING PSYCHIATRISTS: Wilson J Dr D A Grant Dr J F Wood FINDINGS: (1) that the defendant be detained as a forensic patient in the Townsville District and Area Network Authorised Mental Health Service for involuntary treatment and care; (2) that limited community treatment at the discretion of the authorised psychiatrist of the types and on the conditions below is authorised: First, escorted leave on and off the grounds of the hospital on the following conditions: 1. That he remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment. 2. That for the purposes of that escorted limited community treatment he comply with the directions of the nominated staff member or members for its duration. Second, unescorted day leave on the grounds of the hospital on the following conditions: (1) That he return to the ward at the time specified by the authorised psychiatrist. (2) That he abstain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. Third, unescorted day leave on and off the grounds of the hospital on the following conditions: 1. That he remain in the company and under the care of staff members of Kith and Kin Association Limited. -- 1 of 4 -- 2 2. That he return to the ward at the time specified by the authorised psychiatrist; and 3. That he abstain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with burglary, unlawful entry of a vehicle with intent, stealing, assault occasioning bodily harm and entering or being in a dwelling and committing an indictable offence – where the defendant had sustained a head injury which resulted in an irreversible organic personality disorder – where the defendant also has grand mal epilepsy and a past history of substance abuse – whether a forensic order ought to be made or whether an involuntary treatment order would be sufficient Mental Health Act 2000, s 289, schedule 2 COUNSEL: B Devereaux for the defendant J Tate for the Director of Mental Health SOLICITORS: Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health (1) WILSON J: BPW has been charged with burglary on 14 August 2001, unlawful entry of a vehicle with intent on 22 November 2001, stealing on 22 November 2001, assault occasioning bodily harm on 11 November 2002, entering or being in a dwelling and committing an indictable offence on 30 December 2002 and a further count of entering a dwelling and committing an indictable offence between 3 and 6 January 2003. (2) I am satisfied that at the relevant times he was suffering from unsoundness of mind, as described in schedule 2 of the Mental Health Act 2000. (3) The defendant sustained a head injury in 1983. As a result he has an organic personality disorder. He suffers from a frontal lobe syndrome which adversely affects his executive functions. He also had grand mal epilepsy and a past history of substance abuse. (4) His organic personality disorder is irreversible because it stems from a brain injury. It may be that, with time and with further ageing, his behaviour patterns may be able to be controlled further than they have. (5) He is presently an inpatient in the security hospital in Townsville. This matter was set down for hearing before the Mental Health Court in June 2003 in Townsville, but it was unable to proceed because he was too unwell to attend Court. (6) The Court has heard evidence from his treating psychiatrist, Dr Reilly, to the effect that he was then experiencing an episode in which he became quite agitated and his irritability led to aggression requiring seclusion. There have apparently been a number of incidents of this type which are attributable to his mental condition. -- 2 of 4 -- 3 (7) The issue which has troubled the Court this morning is whether a forensic order ought to be made or whether an involuntary treatment order would be sufficient. (8) In considering a forensic order, the Court has to consider the seriousness of the offences, his treatment needs and the protection of the community. The offences with which he has been charged were committed over a considerable period of time. They are all indictable offences. Most of them are property offences and the value of the property in question was comparatively low. The assault occasioning bodily harm was an incident in which he got into an altercation with a Corrective Services officer. (9) The difficulty is that his condition is such that if he is under significant stress in the community, there is a definite possibility of further aggression. (10) Further, an involuntary treatment order, while it may meet his treatment needs at present, could be discharged more readily than a forensic order could be. An involuntary treatment order could be discharged by an authorised doctor who considered that the treatment criteria were no longer met, whereas the discharge of a forensic order would require review by the Mental Health Review Tribunal. (11) In all of the circumstances, I consider that a forensic order is warranted in this case. (12) There is then the question of limited community treatment. He has had leave in the nature of escorted leave on and off the grounds of the hospital and leave in the community with members of the Kith and Kin organisation in the past. Most recently he has not received that because of his behaviour patterns, but there is reason to hope (if not anticipate) that that leave will be restored in the future. (13) The Court has had the benefit of hearing from Mr Wemblet, a supervisor and psychologist with the Kith and Kin Association Limited, who is obviously very conversant with this defendant's case and with his needs. It has heard that there is funding available through the Project 300 scheme and Disability Services Queensland to assist with leave in the community. (14) I am going to order that the defendant be detained as a forensic patient in the Townsville District and Area Network Authorised Mental Health Service for involuntary treatment and care. (15) Having considered the factors set out in section 289 of the Mental Health Act, I approve limited community treatment at the discretion of the authorised psychiatrist of the types and on the conditions I am about to set out. First, escorted leave on and off the grounds of the hospital on the following conditions: 2. That he remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment. 2. That for the purposes of that escorted limited community treatment he comply with the directions of the nominated staff member or members for its duration. Second, unescorted day leave on the grounds of the hospital on the following conditions: (1) That he return to the ward at the time specified by the authorised psychiatrist. (2) That he abstain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. -- 3 of 4 -- 4 Third, unescorted day leave on and off the grounds of the hospital on the following conditions: 3. That he remain in the company and under the care of staff members of Kith and Kin Association Limited. 4. That he return to the ward at the time specified by the authorised psychiatrist; and 3. That he abstain from using alcohol and illicit drugs and cooperate fully in random medical tests for those substances as required by the authorised psychiatrist. -- 4 of 4 --